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Bishop,Tristafinaldraft COMPETING VALUES: AN EVALUATION OF SOPA’S IMPACT ON INTELLECTUAL PROPERTY RIGHTS AND FREE SPEECH HONORS THESIS Presented to the Honors Committee of Texas State University-San Marcos in Partial Fulfillment of the Requirements for Graduation in the Honors College by Trista Bishop San Marcos, Texas May 2012 COMPETING VALUES: AN EVALUATION OF SOPA’S IMPACT ON INTELLECTUAL PROPERTY RIGHTS AND FREE SPEECH Thesis Supervisor: ________________________________ Gilbert D. Martinez, J.D. School of Journalism and Mass Communication Approved: ____________________________________ Heather C. Galloway, Ph.D. Dean, Honors College COPYRIGHT by Trista Bishop 2012 i FAIR USE AND AUTHOR’S PERMISSION STATEMENT Fair Use This work is protected by the Copyright Laws of the United States (Public Law 94-553, section 107). Consistent with fair use as defined in the Copyright Laws, brief quotations from this material are allowed with proper acknowledgment. Use of this material for financial gain without the author’s express written permission is not allowed. Duplication Permission As the copyright holder of this work I, Trista Bishop, authorize duplication of this work, in whole or in part, for educational or scholarly purposes only. ii Table of Contents Abstract 1 Introduction 2 Chapter One: Legal and Historical Background of Intellectual Property Rights and the Freedom of Speech 4 Part One: Intellectual Property Rights 4 Part Two: Freedom of Speech 14 Chapter Two: SOPA Proponents and Opponents 20 Part One: The Internet and SOPA 20 Part Two: Proponents 22 Part Three: Opponents 27 Chapter Three: Discussion 32 Part One: Constitutional Evaluation of SOPA 32 Part Two: The Effect of SOPA on YouTube 36 Part Three: Alternative Solution 41 Conclusion 45 Bibliography 46 iii Abstract This thesis seeks to investigate the competing values of intellectual property rights identified by Title 17 of the United States Code and the freedom of speech by evaluating the constitutionality of the Stop Online Piracy Act, or SOPA. Through the lens of historical precedent and the arguments made by important figures in the SOPA debate, the thesis explores the bill and finds that it may violate the Constitution and be inconsistent with current law. A balanced solution to the conflict is proposed by severing the unconstitutional provisions in SOPA so that the bill no longer affects free speech but still meets its intended purpose of addressing online piracy. 1 Introduction January 18, 2012 will be remembered as the day the Internet went dark. People across the United States and other nations woke to find their favorite websites blocked and censored. “Black Wednesday,” as it was later termed, was a result of the efforts of Internet companies that banded together in protest of a piece of legislation that they claimed would censor the Internet. Many websites put up a site “blackout” that replaced their regularly functioning websites with messages that illustrated the harms of this new bill.1 Google did not completely shut down its services, but lent its support to the protest by blacking out the Google logo and directing users to a petition that could be signed in protest of the bill.2 The Internet protest was in response to the Stop Online Piracy Act, a legislative statute proposed in fall 2011 that was intended to address the growing concern of Internet piracy. The entertainment industry quickly moved to support the bill that set out to protect their copyrighted materials claiming the legislation was a necessary measure to ensure the security of intellectual property.3 The Internet companies that protested were joined by others in opposition of the law on the grounds that it would harm the Internet by 1 Erik Kain, “The Day The Internet Stood Still: Why Wikipedia And Craigslist Went Dark,” Forbes, January 18, 2012, http://www.forbes.com/sites/erikkain/2012/01/18/why-the-wikipedia-and-craigslist- websites-went-dark/. 2 Suzanne Choney, “Google Protests SOPA on Home Page,” MSNBC, http:// www.technolog.msnbc.msn.com/technology/technolog/google-protests-sopa-home-page-117733. 3 “Joint Statement from AFM, AFTRA, DGA, IATSE, IBT and SAG Regarding Stop Online Piracy Act (HR 3261),” Screen Actors Guild, October 26, 2011, http://www.sag.org/files/sag/documents/ 10-26-2011_JointStatementHouseJudiciaryLegislation.pdf. 2 censoring free speech.4 This conflict represents the latest struggle between two competing constitutional values: intellectual property rights and the freedom of speech. 4 “Testimony of Katherine Oyama, Copyright Counsel, Google Inc.,” (presented before the house of Representatives Committee on the Judiciary Hearing, November 16, 2011), http://judiciary.house.gov/ hearings/pdf/Oyama%2011162011.pdf. 3 Chapter One: Legal and Historical Background of Intellectual Property Rights and the Freedom of Speech Part One: Intellectual Property Rights The protection of intellectual property is considered an important right in the United States as it protects the works of individuals and encourages innovation and creativity through the profit associated with such works. Intellectual property rights have a rich legal history beginning with the founding of the United States. Even before the Constitution was ratified, 12 out of the 13 original states had created their own copyright laws to protect intellectual property.5 This was followed by the Constitution which gave Congress the ability “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”6 However, it was not until 1790 that the first national copyright law was passed. The original copyright law in Title 17 of the United States Code, the Copyright Act of 1790, only provided protection for maps, charts, and books that were published in the United States by citizens for a term of 14 years, which could later be extended an additional 14 years.7 In order to receive copyright protection, owners of intellectual property had to pay a small fee and record the title of their work with the Clerk’s Office.8 Under this copyright law, the owners of works had the sole authority to print, reprint, 5 Robert Trager, Joseph Russomanno, and Susan Dente Ross, “Copyright,” in The Law of Journalism & Mass Communication (DC: CQ Press, 2010), 554. 6 “Constitution of the United States,” National Archives and Records Administration, accessed March 17, 2012, http://www.archives.gov/exhibits/charters/constitution_transcript.html, article I section 8. 7 “Copyright Act of 1790,” U.S. Copyright Office, accessed March 17, 2012, http://www.copyright.gov/ history/1790act.pdf, section 1. 8 “Copyright Act of 1790,” section 3. 4 publish, or sell their works.9 If someone were to infringe upon these rights by using copyrighted material without express consent, the owner had the ability to seek compensation for each page of infringing material found in the possession of the violator, and additional damages that would be determined by a court.10 This copyright law set the groundwork for intellectual property rights in the United States, but the law was limited and only applied to specific works. As new technology became available, new types of intellectual works were being created that the Copyright Act of 1790 could not cover. New media like photographs, radio, and motion pictures needed to be addressed in copyright law. Between the years 1909 and 1973 several revisions were made to existing copyright law to keep up with innovations and expand the protection of intellectual property. First, the classification of works that could be protected by copyright was expanded to include periodicals, lectures, musical compositions, art, scientific drawings, photos, motion pictures, and sound recordings.11 These new classifications greatly increased the types of works that could be protected, and updated the law for new technologies as they were developed. The law also extended the rights that were afforded to copyright owners and the duration of protection. In addition to the exclusive rights outlined in the Copyright Act of 1790, the copyright revisions gave copyright owners the sole ability to translate their work; convert, arrange, or adapt the work into another 9 “Copyright Act of 1790,” section 1. 10 “Copyright Act of 1790,” section 6. 11 “Copyright Act of 1909 (revised to January 1, 1973),” U.S. Copyright Office, accessed March 17, 2012, http://www.copyright.gov/history/1909act-1973.pdf, 4-5. 5 medium; and to perform, read or deliver the work in a public manner.12 These additional works increased the scope of the protection of intellectual property, making the use of a copyrighted work in any of the above-mentioned ways infringement. As for duration, the revisions increased the terms for a copyrighted work from 14 years to 28 years following the first publication.13 The terms could be extended 28 more years if the owner applied for renewal within a year of expiration.14 The available remedies for owners of a copyright that was violated increased as well. A court had the ability to award the owner of a violated work either actual or statutory damages for their lost profit and the profits made by the infringer, compensation for costs and attorney’s fees, and other remedies that could be determined on a case by case basis by the court, including criminal prosecution for willful infringement.15 These remedies placed a larger burden on the person violating intellectual property rights, and gave more opportunities for compensation to the owner of the work. Along with the extensions to the Copyright Act of 1970, the revisions made between 1909 and 1973 created new provisions to intellectual property law. First, the revisions included protection for foreign works. A foreign work could be protected under copyright in the United States if the work was published in the United States, if the country of publication had entered in to a treaty with the United States to protect American copyright, or if the President gave specific permission for the foreign work.16 12 “Copyright Act of 1909 (revised to January 1, 1973),” 2-4.
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